>> welcome to the regular meeting of the san francisco ethics commission. >> submissioner sierra. here. >> submissioner leeann whiffen. >> commissioners rennee have been excused. >> i want to talk about the decision to hear and take

possible action on the complaints. mr. chat field who is not here, wrote mr. shaw in may, the ethics commission regularly handles referals from the task force, however it will not ajudd kate these matters, in both complaints. he repeated that in his confidential memo to mr. shen and to mark kets of the district attorney office. because the allegation involves johnson and croy executive director of the commission, the agency cannot handle the matter. period. the commission is engaged in the discussion with the various outside agency and so forth and so on. that was in august of last year.

i did a record search of your files. i just came back from sitting in the commissions office. there is absolutely records of any kind relating to discussions with any other agencies. the references to the san jose city attorney's office are dated 9 months after that. but i think what is really important is that there is a, i think, a reference in an e-mail that it was mr. st craw who spoke to the city attorney about taking these cases. so what we don't know is how this magically happened, nine months later. there are also no e-mails or

other written communications of any kind internally within the staff or with any of the commissioners with one exception which i will give you in a moment. so there is no way to track how this all came about. >> it is obvious that none of you were directly involved in the decision, which considering that it involved your... it had to be completely transparent and it had to be one that everybody would accept. i did find an e-mail from the chairman. it surprised me. it said, it went to mr. san croy. read shaw's complaints is there not any reason that we can't release san jose's analysis about why st san croy's allegations fall. i don't know much about ethics but i know this is not right.

i have a lot of other information on this, but i think that since my time is up, you should carefully think about what you are doing, carefully. >> commissioners, ray heart, director of san francisco government. the sunshine ordinance section 6716 minutes reads, any person during speaking during public comment period may supply a brief written summary of their comments which shall if no more than 150 words be included in the minutes. that is the plain, english, reading of the ordinance. and the sunshine task force has ruled four times, including once against this body that in the minutes, means in the

minutes. yet, mr. saint crow insists that he is keeping them out because the city attorney says you can. in the task force case 11088, which ethics commission was found in violation of the ordinance, to date this commission has refused to comply and refused to hear the referal from sotf from ethics, of course what you produced is 134-page response trying to justify it which is a load of crap. why are you so afraid of having comments from the public be presented accurately in the official records of your meetings. why do you insist on placing the 150 word summaries in an alternative location, substituting in their proper place, in the minutes, your sensored version of those

comments? and why have the members of the ethics commission advocated their responsibility to the director john saint croy in matters that go to the very heart of the open and honest operation. it is a real shame that a citizen of this city has to actually fight with boards and commissions who have taken an oath to support and defend the constitution of the united states and that of the state of california, who in some cases even have a chance to speak. and this is protected political free speech. and to represent it in some other way than a person who is speaking in the original, official records is nothing but censorship. and you want to censor it, which is why it has gone on this long. included in one of the

determinations from the task force was a directive to the city attorney who stopped telling city bodies that not following the law as written, is wrong. and quit advising them to do it. this also referred to the district attorney office as well as this. >> good evening, commissioners, my name is dr. derek kerr. and i have comment that relates to the executive director's report and your annual report to the board. as you know, protection of whistle blowers is one of your mandates, it is in article four of the campaign and government conduct code. but your work in this area is invisible. there is nothing about whistle blower retaliation in your minutes for the last seven

years, or your director's reports, or your annual reports. recently the controller's whistle blower program has been reporting retaliation complaints. 17, this year, none substantiate. since 1995 none have been by this body. each year you are required to provide a report to the board of supervisors. one requirement is that you note the number of complaints that you have received. another requirement is to report, the type of conduct complained about, unquote. and so please consider adding whistle blower retaliation to the categories of complaints, that are listed in the director's report, and that should be listed in the annual

report. it would raise awareness about this issue, and would give visibility to your work and to the work of whistle blowers, thank you very much. >> good evening, commissioners, i'm patrick matt. first, i note that on the hand out table there is no response from the mayor to your inquiry last month about the state of quel gomez. really odd that he is taking so long to reply there. second i asked mr. chat field this morning to distribute two letters that i only recently received late last week. one of them, a copy of it is there. you will notice in the margin, there is an astrisk next to the paragraph in which garrett chat

field wrote, because the allegation in my complaint, involves john saint croy executive director of the ethics commission, this agency cannot handle the matter. they have engaged with discussions with various outside agency to determine if the matter which normally be handled by the ethics commission can be referred to another agency. i indicated to you last month, i don't believe that you should be hearing this case at all. you should transfer it in its entirety, that would be in total to another jurisdiction, not just merely to obtain, an opinion, and the deputy city attorney, who clearly did not understand the roles. next i would like to draw your attention that maibl ing had violated sunshine ordinance in

2007 or so, and in that complaint is referred to the ethics commission. i believe in total. and the ethics commiting accepted oakland's determination in that case, and i am asking you again to transfer my case in its entirety to another jurisdiction, there is a clear conflict of interest with this body, ajudicating a flawed analysis from the an jose city attorney and you should refer the whole matter to another jurisdiction and finally, i would like to congratulate the

four courage yus members of the board who rejected this considering ross macarini, they, unlike you, came to the correct ethical conclusion, there was no nexus and therefore the sheriff cannot be removed under the official misconduct. >> >> hi i'm hope johnson and i just wanted to i am not sure how long i will be able to stay. i am of the complaints that have been brought back with the recommendation by the san jose city attorney. i wanted to bring to your attention one thing and in our argument i was on the task force at the time that these were heard. i also want to echo that i

think that considering the great risks that have come before the city and the leaders that would like to have a closure to that, that even asemblance of some sort of conflict of interest needs to be addressed in a way that makes the majority of people feel comfortable and i think that sending this somewhere else, even if it took a little bit longer might help go down that path. in the back of this memo, one of the... in the conclusion part, it says that the task force did not apply the law correctly. and i just wanted to point out to you for your consideration, that in one of these complaints, that the information that was sought was really about which department handled the complaint as opposed to the actual information that was traded. and at the time that we had these hearings, governor schwarzenegger posted that kind

of information on-line about a week after we held our first hearing, governor brown took them down. so, it is really not a matter of applying the law in my opinion, it is a matter of policy and the way that you want the law to be applied. it is not black and white. and it is something that the sunshine ordinance itself says whenever there is a conflict or there are two paths to go down, that the voters prefer to go down the path that leads to the most open government. thank you. >> i work for laguna honda before i was driven out of there (inaudible). i want to under score what dr. kerr said about the fact that you all have the responsibility

to deal with whistle blower realtation, and the events are very important in society and clearly you are finding of no whistle blower retaliation when the government project finds that the vast majority are retaliated against, begs the question as to whether you guys are doing what you are supposed to be doing, thank you. >> next, item on the agenda, is the discussion and action on ethics complaint 08110816 and 09110816, alleging that executive director john st croix and tonia lediju willfully violated the sunshine ordinance. i understand that we can get or have got lisa from san jose to the attorney's office on-line and i think that we should try to do that.

>> with respect to the issue, i would like to give mr. shaw an opportunity to speak, i know that he submitted a response to heric's analysis and i have reviewed it. but i do want to give mr. shaw an opportunity to explain it and provide whatever response to miss heric that he would like to provide. i don't really care which order we do this in, whether it is mr. shaw first, followed by miss heric or whether it is miss her heric first, fellow commissioners, do you have a preference? >> you are talking about as to the merits of the complaint

itself? >> i am. >> if we were to want to raise the question of what body ajudicates it, when would you consider that to be appropriate? >> i think that if a commissioner wants to raise that we should raise that now before we get into merits. >> i think that we have to put it before ourselves and not just move into the merits stage. i think that there are certainly perception issues about our ability to handle this. and i would like to hear the... your thinking and the other commissioners thinking on it. >> commissioner? liu or studley do you have other things that you wanted to add? i think that we should. >> sort of working my way forward here.

>> okay. >> commissioner liu? >> thank you. i mean that i think that mr. shaw and miss johnson raised some good points about perception issues on whether we should be considering this at all or whether the entirety of these two complaints should go to be determined by a different body altogether. so i guess i would put it maybe a question to the city attorney's office about where the parameter of the perceived conflict of interest in how it came to be that we received a recommendation from a different body, but then it would come back to the members for a determination, the ultimate determination, or how has that worked in the past, so if you could educate us on that, that would be great.

>> and to the extent that there was reference to public comment to a previous matter involving staff, if you know the specifics of that one. >> sure. >> it would be helpful. >> i can't actually speak to what happened in this case because i was not involved in the decision to send it to an outside body. but i can tell you that this practice is consistent with the past practice of the ethics commission. when either a member of the ethics commission staff or even a member of the ethics commission is charged with a violation of one of the laws under your jurisdiction, that you find an outside entity to handle the investigation, rather than in the shoes of the executive director. but then, the complaint comes back to the commission ultimately to decide. i believe that the reason for

that is, that these laws, that the complain of governmental conduct code and the city charters authoritieses the ethics commission to make the determinations not a body pointed by non-san francisco officials serving another city. some of that answers all of the questions that you were asking. >> and has there been occasion where all of it the entire case of it was just handled by a different agency because the respondent was the san francisco ethics commission. >> not that i am aware of, and so, but i would say is the ethics commission does not have the commission as a body or even any of the five of you, do not have a legal conflict that would prohibt you from ajudicating this kind of case. >> okay, thank you. >> do you or other staff

members, does that include the situation involving the deputy director that was referred to earlier, was that handled by... was that ajudicated by this ethics commission after legal analysis by oakland? or was there another methodology? >> actually i am sorry to put you on the spot. but you know about ther than anyone how it was handled. >> in that case, the oakland city ethics commission conducted the investigation, provided a report to the members of the ethics commission, and the members of the ethics commission and took it up in closed session and made a determination. >> and the members of the san francisco ethics commission ultimately made the decision. >> that is correct. the san francisco ethics, yes. >> thank you. >> and i should add that there have been other complaints that are confidential because they fall within the confidentiality rubric of the charter that have

been handled the same way complaints against the staff where the oakland ethics commission or perhaps another outside body has done the investigation, come back to the san francisco ethics commissioners for a final adjudication. >> is there any policy reason that you are aware of that would prevent us from having another body adjudicate the entire issue, rather than having it from another body and coming back to the members for a final adjudication? >> you are asking whether there is a legal... whether you are legally can send it to an outside body? >> one question would be legally permitted and is there a policy consideration that i am not seeing? yes, for not putting it that

way. >> i am not sure whether you are legally permitted to send the adjudication to an outside body. >> i see. the entire adjudication. >> right. right. if a single member, for instance, the executive director has been bared from the violation, he cannot make decisions or decisions involving his own character or conduct, but that does not mean that the ethics commission as a whole has a conflict and because our local laws charge the ethics commission with making the final determinations in these matters. i am not sure that the ethics commission can then send that final decision to another body to make. >> okay. so you think that we may not be legally permitted to send the entire case to another jurisdiction altogether? >> that is right.

i see. okay. >> mr. grossman, please? >> sit down. >> there is time for public comment, there is time to hear from the parties. >> and we will have that time. >> mr. heart, i am going to ask people to leave if we are not going to be able to respect the rules and our procedures here. you will certainly have the opportunity to speak, and like i said, mr. shaw, especially will have his chance. any other questions for mr. gidner? >> i am trying to think whether this would be something that

would be ammenable, to research, because it is our responsibility, and i just don't know whether the law is going to give us a crystal answer than that. >> certainly, i can see the legal problem with having it separate agency make a determination that we somehow passed through as binding. now, could another city, county agency, make a recommendation that we would then have to readjudicate? that sounds like something that would likely be possible and would the premature of a completely, an agency that is totally separated from ours, provide assurances to the

public that it was ajudicated correctly, perhaps. fortunately or unfortunately, we would be required to make our own determination, i don't think that we could rubber stamp it whether it was one or another. i don't know how ultimately helpful it is. that said, i certainly have no objection if we could find such an entity to look at it. i mean, i don't necessarily have an objection to that. i just don't know whether it saves anybody any time and certainly, i mean flipping it around, would we the san francisco ethics commission be... >> would we do that for another agency knowing that it was really just a recommendation that the other would do whatever they wanted with? >> i don't know, maybe.

>> i'm tempted to refer to the recent proceedings in which there was a step by step process, and one entity we built the record and another entity knowing what had been said in a transparent way had to then tackle and could, the individual members could agree or not agree. but, the people knew what that more separate entity had said. it is complicated, i don't know whether anybody would take it. so we might have some time spent looking to see whether, or does not like advisorry opinions from a body with adjudicative responsibility and i am trying to think of what would make send to stand and be credible. and our own analysis and we

have not heard the merits yet. so, we don't know whether we will think that it is a hard question. one way or the other. because we have not heard the whole presentation and asked the questions. >> perhaps we can ask miss herrick if san jose was asked to take the whole matter and if that is something that they would even consider doing. >> i don't know whether the city attorney staff person will be able to speak for the commission. >> perhaps not. but perhaps she could answer the first question, at least. >> unless we know, does anybody... do you know that?

>> do you know? >> i believe that it was the city attorney's office that was asked to handle this matter. >> the investigation. >> the investigation, yes. >> thank you. i am so sorry. i am lisa herrick and i was asked to review the referal from the sunshine task force, sunshine ordinance task force and i agree with mr. gibner that i am not sure that there is a legal authority under the procedures that your commission has in reviewing these